Is Advocating the Violent Overthrow of the United States a First Amendment Right?

On June 22nd 1940, France surrendered to Germany, and the U.S. House of Representatives passed the Smith Act the very same day. It was believed that the rapid fall of France was due in no small part to subversion by communists allied with Germany. There was concern that U.S. entry into the war might lead to similar subversive plots taking place here in the United States. Most prominently, the Smith Act made it illegal to advocate the violent overthrow of the U.S. government or to form an organization for that purpose.

In 1948, the head of the Communist Party in the U.S., Eugene Dennis, along with other Communist Party leaders, were convicted of violating the Smith Act by working together from 1945 to 1948 to advocate the violent overthrow of the U.S. Government. The trial extended over nine months and generated 16,000 pages of evidence, a record at that time.

With the guilt of Mr. Dennis and his colleagues already established in the lower courts, the Supreme Court considered whether the Smith Act was in conflict with the Bill of Rights, particularly the First Amendment. The Smith Act stated, in part:

“It shall be unlawful for any person to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government…”

The history of our own war for independence did not escape the Supreme Court. Certainly the Declaration of Independence speaks of the right of the people to change or to abolish their government when, instead of securing the rights of the people, it violates those rights, and violates the reason for its existence. However, the Founding Fathers were careful not to promote anarchy, and through the Constitution gave the federal government ample authority to suppress insurrections against lawful government. The duty to “throw off” unjust government found in the Declaration of Independence is also specific. Such a duty exists when a government has taken to itself absolute power, which the Founding Fathers referred to as absolute despotism.

In Dennis v. United States, the Supreme Court explained it this way, “Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments [that argument] is without force where the existing structure of the government provides for peaceful and orderly change.” In other words, while the people retain the right to freely elect their representatives, and there is an orderly process in place to change the government, the people do not possess a right to simply cast the Constitution aside.

In defending the Smith Act, the Supreme Court explained, “The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism.” The Court made clear to distinguish between an academic discussion of the tenants of communism—for example—and a conversation in which you attempt to persuade someone of the benefits of violently overthrowing the government. The former is protected under the Constitution; whereas the latter may be unlawful sedition.

Before First Amendment protections are forfeit, however, the Court explained that there must be a “clear and present danger” that the anticipated violence may actually take place. For example, a conversation used as part of a stand-up comedy routine would lack the “clear and present danger” needed in order to prove sedition.

However, the Court also made it clear that a terrorist attack does not need to actually take place in order for an individual to be convicted of trying to encourage someone to bring one about. The government is not obligated to wait until a terrorist attack is imminent before it intervenes to stop the attack. The government need only demonstrate that danger is present.

In Dennis v. United States, the U.S. Supreme Court upheld the convictions of all 11 members of Communist Party leadership. Those convicted had every intention of carrying their plans through to completion if given the opportunity, and were not entitled to First Amendment protections for their activities.

The moral of the story is this: Those trying to destroy America’s First Amendment protections through violence cannot use the First Amendment for protection as they plot to destroy the First Amendment. The Founders wisely provided many tools in the Constitution to enable us to preserve it. No one may plot to overthrow the Constitution with impunity. Congressmen can be removed, presidents and judges may be impeached, criminals may be imprisoned, and insurrections can be put down with force to ensure a republican form of government in every corner of our nation, as guaranteed by Art. IV, § Sec. 4 of the Constitution.

The Honorable David Eastman is a graduate of West Point and a former Captain in the U.S. Army. He has served at each level of U.S. government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He currently serves as a firefighter in Alaska and as a State Representative in the Alaska House of Representatives; He and his family live in Wasilla, Alaska.

Unfortunately, those trying to destroy America’s First Amendment right and America herself do hide behind the First Amendment. Witness the Left’s various pronouncments and their very active efforts to destroy the Trump presidency at any and all costs. And there appears to be NO consequences..

Thank you for a very informative essay. The SCOTUS decision is logical and in accord with the Founders.

The ploy of using a Constitutional Right to destroy the foundation of the Right was the tactic used by Secessionist. The used States Rights to defend, and for the fire eaters expand, slavery. The result was States Rights was permanently weakened.

Today, the biggest threat to the right to free speech exists on College campuses where left wing radicals threaten physical harm to those peacefully sharing an opposing opinion to their own. Amazingly they do not understand that if they are allowed to silence their opponents then others will be allowed to silence them.